Kitzmiller, Kafka, Behe and Astrology: a "Theory"

As there have been recent discussions about Kitzmiller, I have been thinking about some particular issues relating to the testimony of Michael Behe at the trial.

Behe speaks of the trial as having been “Kafkaesque,” and he suggests that anyone who would like to understand what he means by that should read The Trial. But as a person who studied Kafka long, long ago, I can see something Kafkaesque, but it’s not what Behe sees. Behe’s experience did not much resemble that of Josef K., but there is, I think, a fit in Kafka’s work which is closer: Gregor Samsa. Behe supposes, having that lack of objectivity from which we all suffer when our own identity is concerned, that his trial testimony made sense, and went on making sense, while the rest of the world spun out of control. But as relativity teaches, the world can look like it is spinning out of control for other reasons entirely; and a court will judge matters from its frame of reference, not from the frame of reference of the witness.

In The Metamorphosis, it is Gregor who transforms from the sensible to the absurd, and from the ordinary to the loathsome, while the world goes on around him, making as much sense as it ordinarily does. This does fit Behe pretty well. Before Kitzmiller, the worst that might have been said of him was that he was a bit of a crank. But along comes an angry group of anti-constitutionalist Bible-thumpers, seeking a way to get creationism into the schools, and what does Behe do? Does he stand with science, and tell these people that they have no business forcing their religion down the throats of children? No; he allies himself with them and defends their fanatical agenda. And, of all the places to do this, he chooses to aid them in a US District Court, not the best place to push an anti-American cause. The scenario is about as promising as a terrorist, caught with the bomb in his hands, coming to the US District Court to explain that this has all been one hilarious misunderstanding – but Behe pushed on, even as most of the DI fellows who had signed up for this got back on their Ark and sailed out of town. In taking on this cause, Behe became like Gregor Samsa: at once absurd and loathsome. Absurd, because he found himself uttering thoughts like the idea that astrology is a scientific theory, and loathsome, because he fought to deprive others of the benefits of the fundamental values on which our civilization is based. Kafkaesque? Perhaps; but Behe was at least a co-author.

Tim asked, in relation to that infamous “astrology” gaffe at trial, whether that testimony had come out at the deposition, and I realized that I’d never reviewed Behe’s deposition or his expert report – these not being part of the trial record. Nick Matzke was kind enough to provide me with both documents, and, being a great fan of tragic absurdist literature, I settled in for a long read.

I can confirm that the astrology testimony did indeed come up, briefly, in the deposition. I think I can also explain how it came up and why it apparently failed to alarm either Behe or defense counsel sufficiently to result in a better-developed answer at trial.

The sequence of work, in a case involving an expert witness, ordinarily is this: first, an expert “report” is prepared, which sets out the topics on which the witness will testify and the substance of the opinions he will render. The purpose of this report is to provide discovery to the opposing counsel – here, the counsel for the parents (invariably referred to, inaccurately, by the DI’s culture warriors, as “the ACLU”). Opposing counsel then, in most jurisdictions, takes a deposition of the expert for the purpose of preparing both opposition testimony and cross-examination.

One of the oft-stated “rules” of trial practice is that you never ask a question of a witness if you do not already know the answer, and so there often is significant development of cross-examination at the deposition. This is the only “live” opportunity to test questions out. If you ask a question like “would astrology be a scientific theory under your definition” at trial for the first time, you never know what will come back – and sometimes, by asking a question you do not know the answer to, you make a regrettable mistake because the answer is better than anything you’ve anticipated or is simply something you are not prepared to follow up correctly. So, if you’re going to get damning admissions from a witness, the deposition is a great place. If the witness answers the question at trial consistently with his deposition, great; if he answers inconsistently, you get to pull the deposition transcript out as “impeachment” material to challenge the consistency and credibility of the witness. And if the witness has given a brilliant answer to the question which isn’t helpful to you at the deposition, well, you don’t ask that blasted question at trial.

Behe’s expert report is, to use a technical term, downright weird. One might expect the thing to be devoted principally to the defense of ID Creationism – to an attempt to show that, though the ORIGINS of ID are in the intellectual swamp of fundamentalism, ID has matured into something which is legitimately scientific, with nary a bit of slime still dripping from its limbs. Excising the creationism from ID, in the face of history, isn’t easy, but if anybody could do it, Behe could. That there’d be very little left of ID after the operation is certainly very clear: it’s reminiscent of the famous remark by Christopher Hitchens upon Jerry Falwell’s death: that if you give him an enema first, you can bury the man in a matchbox. But one matchbox full of genuine scientific inquiry would be better than the whole bloated corpus of creation science, and might contribute to a win; nobody could stuff that matchbox better than Behe.

But that’s actually not the leading theme of Behe’s report. He doesn’t even get to whether ID is creationism until page 15, and when he does, he has to rely on a very narrow definition of “creationism” (essentially an ‘only YECs need apply’ definition) in order to make the argument. The first argument out of the gate, on which Behe spends more words than on anything else, is that there’s more than one usage for the word “theory.” He concludes that ID is a “theory” because it is “a proposed explanation for a set of facts.”

This position on Behe’s part is the gateway to his “astrology” testimony, and what’s rather odd is that, frankly, Behe could probably have left this whole issue out of the testimony and nothing would really have been missing. The statement to be read to the students – the gravamen of the whole complaint – said:

"The Pennsylvania Academic Standards require students to learn about Darwin’s Theory of Evolution and eventually to take a standardized test of which evolution is a part.

Because Darwin’s Theory is a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations.

Intelligent Design is an explanation of the origin of life that differs from Darwin’s view. The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves.

With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the Origins of Life to individual students and their families. As a Standards-driven district, class instruction focuses upon preparing students to achieve proficiency on Standards-based assessments."

Notice something? The Dover Area School Board says specifically what definition of “theory” it is using, and it’s not Behe’s definition! This statement, taken by itself or together with more conventional definitions of what a scientific theory is, precludes the possibility that the District intended the word “theory” to mean what Behe says it might mean. Whether one uses the National Academy of Sciences term that a theory is “well-substantiated” or the Dover Area School District’s statement that it is “well-tested” (which we may presume implies that it has not failed, and so is more or less the same thing), it’s clear that “theory” as employed here does not merely mean a proposed explanation.

It is also clear that the District did NOT describe ID as a “theory” but only as “an explanation.” So, the only significance of the use of the word “theory” in the statement is in its characterization of what the District calls “Darwin’s Theory.” It has no relevance to how the District has characterized ID. To defend the District’s statement, one does not need to defend the notion that ID is a “scientific theory,” and yet this contention occupies pages of Behe’s report.

Remember that in an adversarial system, every case is about its own facts; it is not about some generic or broader set of facts in the larger world. It doesn’t resolve hypothetical scenarios, but addresses the facts which played out between the parties before they went to court. When it is clear that nobody in the dispute is using the word “theory” in the sense employed by Behe in his report, this renders Behe’s contentions on the definition of “theory” quite irrelevant: a strange excursion through the linguistic territory of multiple usages for a term, with no bearing on the dispute under review. The question is whether teaching this statement to children, on the taxpayer’s dime, is an infringement of the First Amendment. The statement contains its own definition of “theory” which might be illuminated or clarified further (e.g., by the similar language used by the National Academy of Sciences) but not set aside in favor of something contradictory to the statement under review.

So this whole phase of Behe’s testimony was of no real importance in dealing with the dispute. What good could it do the defense? Very little; but, irrelevant though it may be to the core issues, it opened the door to questions which the defense should have been more cautious about allowing Behe to answer. It provided some splendid material for breaking down just what it meant when the defense experts admitted that ID was not a “theory” within the NAS or similar definitions. When Behe testifies to how ID comes into the definition of “theory” if the definition is loosened, naturally the question arises: what else would then come in? And there it is, right at p. 132 of the deposition, looking almost like nothing but a little sneeze in the transcript:

“Q. Is astrology a theory under that definition?
A. Is astrology? It could be, yes.”

My sense, reading this in the context of the whole transcript, is that defense counsel Eric Rothschild probably knew he’d hit pay dirt there. And he had the good judgment to stop: don’t stress the point, don’t draw a lot of attention to it. If he’d insisted on making more of it then, it might well have drawn a more careful answer, and drawn more attention from defense counsel, and the effect might have been spoiled. As a veteran litigator told me once when I was new to taking depositions, a witness comes to the deposition with a story to tell, and it is your job not to let him tell that story. Whatever else Behe might have said on the point, it could be of no further use to the plaintiffs, and Rothschild stopped there. I think, frankly, that with all of the issues flying around and with everyone in the room a bit tired after hours of testimony, it’s likely that defense counsel never focused on this and never pointed out to Behe that he’d better be able to qualify this answer at trial. If there was no focus on that by defense counsel – something we will never know – that was certainly a serious mistake by counsel. If that subject was raised and Behe failed to address it, that was certainly a serious mistake on his part.

It’s always easy, of course, to Monday-morning-quarterback this stuff. But it certainly seems clear, with the benefit of some hindsight, that the defense team gave Behe’s testimony a scope it ought not to have had. Behe was better situated than any other witness to establish something the defense really needed: that ID represents a valid scientific inquiry into the facts and organizing principles of biology. He was less well situated to deal with the philosophical issues, the science/religion demarcation problem, or the pedagogical issues. But on those issues, the Board came up rather short of help elsewhere, too. Fuller was a disaster on philosophy, affirming in his report that ID had a “commitment to supernaturalism”; a cellar-cooled pint of Fuller’s London Pride would have made a more helpful expert, even if all it had done was leave a circular condensation mark on the witness chair.

If one were to try Kitzmiller again, for the defense side, one would probably want to give Behe a more restricted scope. The plaintiffs’ expert who needed to be answered most forcefully, and whose testimony was extremely important, was Barbara Forrest (whose upcoming interview with @swamidass I greatly look forward to!). It might be that the defense originally hoped to do more of that work via the testimony of Stephen Meyer, who certainly could do the defense no good whatsoever on the scientific issues but might have been able to blur the linkage between ID and other forms of creationism. But feuding within the defense camp resulted in Meyer running out on the defense before deposition or trial, so it is very hard to say how good a job he might have done.

What Kafka might have had to say on the matter remains anyone’s guess. My suspicion is that the author of The Metamorphosis might have found the whole thing too implausible to make a good story.



Thanks for this. It lays to rest a number of lingering questions I had.

A couple of minor points:

  1. According to Monkey Girl it was Dembski who was originally meant to rebut Forrest. I remember at the time (and MG confirms) that the defense went to considerable length to try to get her excluded, and the DI likewise went to considerable length trying to belittle and vilify her.

  2. Even after Meyer exit, the defense still appeared to have a viable expert witness on science/religion issues, Philosopher of Religion Warren A. Nord, whose Expert Report can be found here, who was deposed but not called on at trial. (Full list of expert reports can be found here, including that of a second deposed-but-not-called expert witness, Dick M. Carpenter).

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Interesting! I wonder if these guys blew up at their depos. I’d have thought the defense would be eager to at least dilute the Behe astrology bit and the Fuller supernaturalism bit – but perhaps there would have been even worse material if these witnesses had testified. We may never know…

I would have thought that they’d at least have considered Nord as a possible replacement for the withdrawn Meyer (unless, as you say, he “blew up” in his deposition). As to Behe and Fuller, it might be, as you suggested, that they didn’t see a problem going into their testimonies, and then when they turned out to be disastrous, it was too late in proceedings to reintroduce omitted witnesses as coverage. Carpenter’s report was very short (4 pages I think) and would have served to rebut Alters more than buttress Behe or Fuller.

It’s a bit hard to work out, really. I find that I wonder whether the Thomas More Law Center people were dim enough to think that because their judge had been appointed by a creationist, it was all over but the shouting.

Now, ordinarily I would assume that that kind of combination of witlessness and cynicism could never occur in anyone who had actually tried cases before. But there are other events in the litigation that do point in that direction. In particular, the filing of the defendants’ motion for summary judgment, on which I wrote in another thread, was a boneheaded move of the first order; was the sort of thing which could only have succeeded if the judge were a secret cdesign proponentsist himself; and was a total disaster because of the splendid preview of the plaintiffs’ case which it enabled plaintiffs’ counsel to deliver in response.

But, clearly, at some point the expert list was culled and the decision was to go with this crew. Behe, within a narrower scope, was as good a witness as ID could ever have hoped for. But the defense was left without a single decent witness for the proposition that all ID is not necessarily creationist.

Sometimes when I look at this I think that they misapprehended the task ahead of them, too. Trying to make ID “not” creationist was never really going to work. But trying to show that there was some small subset of ID that was not creationist might have worked, if they could blur things up sufficiently. Perhaps the problem there was that there was too much evidence of the religious motives of the Board members, and it was felt that they needed to take a hard line on this – but who, apart from someone drunk on Kool-Aid, has ever thought, even for a moment, that ID is simply not creationism?

At any rate, if that’s the line you’re going to take, you need a witness who can say it without giggling and who hasn’t given it up ten different ways in his testimony. They didn’t have that.

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Maybe they should have hired Rudy Guiliani. He’s a master at taking fool’s money.

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Indeed. But here, I think, is one of the interesting aspects of the Kitzmiller puzzle.

The DI seems to have figured out, at some point, that its interests and the interests being promoted by the defendants, and by the Thomas More Law Center, were not all completely in line with one another.

The DI is principally cynical and revenue-driven. That this is so can be seen very clearly by reading some of the recent books they’ve published, which are so gob-stoppingly horrid that they make it absolutely clear that the DI has no interest in any type of scientific inquiry at all: Darwin’s House of Cards, by Tom Bethell; Foresight, by Marcos Eberlin; Heretic, by Matti Leisola; and Zombie Science, by Jonathan Wells.

From the point of view of the DI, the question is: what will increase the flow from the money faucet? So from that point of view, Giuliani would be a good choice. Also, the notion of human/Giuliani common ancestry is difficult to accept, so there’s that – though they do already have Jonathan Wells for that angle. I think he could be an excellent fundraiser for the DI.

The Thomas More Law Center seems less revenue-driven. I think TMLC actually wanted to win the case but, bless their little Protestant-burning hearts, didn’t know what it was getting into.

If you’re the TMLC, you want to win the case. You want a court to declare that you can, indeed, force your religion down the throats of children, First Amendment be damned. But if you’re the DI, you have a more complex problem: how to create the impression that you’re doing important scientific work when you are doing no scientific work at all, and how to appeal to the persecution complex of the fundie donor class. Going to court and getting your clock cleaned may not the best way to do that but, as the DI has proven, all you need to do next is to start slandering the judicial system. Giuliani, as the recent facebook posts by Vic Walczak (of the Dover trial!) on the election show, is really good at losing litigation in the Middle District of Pennsylvania. He could lose ten cases in one afternoon if he wanted. So Giuliani is less than ideal from the TMLC point of view, but perfectly suited to the DI.


I can kind of understand where Behe is coming from. A scientist suddenly finding himself in a trial probably does feel a bit strange and bewildering. There’s a certain decorum, shared vocabulary, and flavor to discussions between scientists, and the courtroom is probably very different in that regard. My first few scientific presentations felt really weird and out of place, but now they feel absolutely normal. If I were thrust onto the witness stand I would probably feel weirded out too.

I’m beginning to think my terrible poker face might have been a handicap if I had decided to pursue a career in law.

I think that’s probably so, although “Kafkaesque” does suggest something rather more than “I felt uncomfortable and at odds with my surroundings.” Heck, I’m less comfortable in courtrooms now, after having been out of practice for 16 years.

Not always. Sometimes, maybe. When you really have got a witness on the ropes sometimes the dynamic is just the opposite: you want to drive it home and make everyone in the room feel the sting of it. That’s mostly at trial, but there are times when you’re at a deposition and you’d like your opposition to understand how bad his case is on some point or other.

One anecdote there: we had a case involving a woman who’d been injured in a car accident. Soft-tissue injuries, with fairly typical consequences which were somewhat immobilizing, but which sounded possibly exaggerated. Her angry ex-husband called a week or so before her deposition and had a number of facts he wanted us to know. The fellow I worked for was taking the deposition, and he went through her injuries, her inability to do this and that, and so on. He asked if she’d had any employment since the accident, and she said she had not. He then asked whether she had, in fact, worked at a particular establishment – I don’t recall the name of it but it had a picturesque name along the lines of “Boom-Boom Kitty Topless Bar” or that sort of thing, and she was rather taken aback and admitted that she had been, while quite completely immobilized, working as a topless dancer.

Her lawyer, unaware as he had been of any of this, saw the dollar signs flying away. The case settled soon after, and not for a lot. No poker face required.

Yes, but it is hardly surprising that a courtroom is “a bit strange and bewildering” to a scientist, any more than it would be surprising if a scientific symposium would be a bit strange and bewildering to a lawyer. If after two such trials (Behe also participated in ACSI v. Roman Stearns, with similar results), 15 years to come to terms with it, and no sign that anyone less partisan than the DI found anything amiss, he still hasn’t made his peace, I think it can be attributed to Behe’s egocentricity, probably aided and abetted by the DI’s ongoing self-interest in discrediting the court case.

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